U.S. v. Dunbar

• Decision Date: 16 January 2009
• Docket Number: No. 07-1752.,07-1752.
• Citation: 553 F.3d 48
• Parties: UNITED STATES of America, Appellee, v. Rex Vernal Geovaney DUNBAR, a/k/a George Dunbar, a/k/a Dave Maughn, a/k/a Chris Boisvert, a/k/a Andrew Watt, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

553 F.3d 48

UNITED STATES of America, Appellee, v. Rex Vernal Geovaney DUNBAR, a/k/a George Dunbar, a/k/a Dave Maughn, a/k/a Chris Boisvert, a/k/a Andrew Watt, Defendant, Appellant.

No. 07-1752.

United States Court of Appeals, First Circuit.

Heard September 10, 2008.

Decided January 16, 2009.

Michael J. Sheehan, for appellant.

Anthony E. Fuller, Assistant United States Attorney, with whom Randall E. Kromm, Assistant United States Attorney, and Michael J. Sullivan, United States Attorney, were on brief for appellee.

Before TORRUELLA, BALDOCK,^* and LIPEZ, Circuit Judges.

TORRUELLA, Circuit Judge.

Rex Vernal Geovaney Dunbar appeals his conviction and sentence on all seven counts of an indictment charging him with various drug, firearm, and immigration crimes. Specifically, he challenges (1) the denial of his motion to suppress, (2) the denial of two motions for a mistrial, (3) the district court's rejection of a requested jury instruction, and (4) the district court's finding that certain drug quantities were crack cocaine in calculating Dunbar's guideline range and sentence. After careful review of the record, we affirm.

I. Background

In March 2002, Oklahoma police officer Bobby Tyrone Williamson stopped Dunbar and his wife Sandra Boisvert on Interstate 40 in Oklahoma. Williamson stopped Dunbar for following another vehicle too closely, a traffic offense under Oklahoma law. Williamson asked Dunbar to sit in Williamson's cruiser while he prepared a warning for the traffic violation. Boisvert and Dunbar made inconsistent statements to Williamson about their travel plans. Williamson also determined that Dunbar's license, carrying the name of Dave Maughn, was expired. Williamson issued the written warning for the traffic violation.

Just as Dunbar was exiting the cruiser, Williamson asked Dunbar if he was carrying drugs or weapons. Dunbar replied that he was not. Williamson asked for permission to search Dunbar's car, and Dunbar agreed. Williamson then placed Dunbar back in the cruiser and asked Boisvert to join Dunbar there. A video-recording device had been capturing the events of the stop. At the time Boisvert joined Dunbar in the cruiser, Williamson activated audio recording equipment inside the cruiser. This equipment recorded incriminating statements made by Dunbar to Boisvert. Williamson searched Dunbar's vehicle and found "17 or 18" pounds of marijuana and a 9mm semiautomatic pistol. Williamson then arrested Dunbar and Boisvert. Dunbar now appeals the admission of his incriminating statements and testimony regarding the discovered drugs.

As a result of this arrest and other illegal activities detailed below, the government ultimately charged Dunbar with seven criminal counts by a Third Superseding Indictment on June 21, 2006. These counts included (1) conspiracy to distribute and possess with intent to distribute controlled substances, (2) conspiracy to import controlled substances, (3) distribution of cocaine base, (4) use of a person under 18 years of age to distribute controlled substances and to import controlled substances, (5) using and carrying a firearm during and in relation to a drug trafficking crime, (6) illegal re-entry of a deported alien, and (7) being an illegal alien in possession of a firearm.

At trial, the government introduced evidence supporting each of these charges. First, Williamson recounted the arrest and authenticated a videorecording of the arrest and the seized firearm. Next, an immigration agent testified that Dunbar had admitted to having been previously deported and that immigration records showed Dunbar had not obtained the permission required to re-enter the country legally. The government also offered testimony establishing the required elements of the firearm offenses.

The remainder of the government's testimony came from a series of women who testified as to various drug-trafficking activities performed for Mr. Dunbar. This testimony, reconstructed in chronological order, established the following series of events.

In the spring of 2000, Jamie Spaulding, who was under the age of 18 at the time, occasionally stayed with her friend, Catherine Dumont, and Dumont's mother, Boisvert. Spaulding was in a relationship with Dunbar, and brought him to Boisvert's house. Around this time, Spaulding made two trips to California for Dunbar in order to transport marijuana to New York City, where she was living with Dunbar. In June 2000, Spaulding was arrested at the airport in Los Angeles with thirty-five pounds of marijuana.

After being released from juvenile detention, Spaulding moved to Worcester, Massachusetts, where she lived with Dunbar and others, including Lou Hanley. From this apartment, Spaulding sold crack that Dunbar provided to her. Spaulding later moved to another apartment in Worcester with Hanley and his girlfriend, Darlene Sampson, where Spaulding, still under the age of 18, continued to sell crack for Dunbar.

Spaulding testified, without objection, that while living in Worcester, Dunbar hit her in the eye because he was upset with her handling of the proceeds of the drug sales. Spaulding also testified, without objection, that Dunbar had hit her in the ribs with the butt of a gun. Spaulding further testified, over an objection and a motion for a mistrial, that Dunbar hit her with a broom when he discovered she was cleaning a part of the apartment she was not supposed to use. Also over an objection and a motion for mistrial, Spaulding testified that her stepfather had sexually abused her as a child. Dunbar now appeals the denial of these two motions for mistrial.

Next, Sharon Cote made a drug-trafficking trip to Jamaica on behalf of another individual in late February or early March, 2001. While in Jamaica, Cote met Dunbar, who gave Cote packages of white powder packed in plastic and condoms. Cote successfully transported these packages into the United States.

In March and May 2001, Spaulding made trips to Jamaica for Dunbar. On the first trip, Dunbar gave Spaulding powder which she believed to be cocaine. Spaulding successfully re-entered the country with the drugs. Spaulding testified that she later sold the drugs in Worcester. On the second trip, Spaulding traveled to Jamaica with Tina Cormier. Dunbar gave Spaulding and Cormier what Spaulding believed to be crack cocaine. This time, Cormier was apprehended by customs agents. After reaching the parking lot of the airport, Spaulding went back into the terminal to call Dunbar. At this point, Spaulding was also arrested. Spaulding subsequently pled guilty to transporting cocaine base and crack cocaine.

Dunbar also convinced Hanley and Sampson to travel to Jamaica to retrieve drugs. Sampson had previously purchased crack from Dunbar on a regular basis. Boisvert helped arrange this trip. Two individuals in Jamaica gave Sampson pellets of drugs which she ingested. Sampson became ill and confessed to customs agents upon re-entering the country.

In October 2001, Boisvert traveled to Jamaica for Dunbar to retrieve drugs. Boisvert and Dunbar had married in Jamaica in February 2001. In Jamaica, Boisvert retrieved cocaine powder and marijuana from a friend of Dunbar. Boisvert swallowed these drugs and re-entered the United States without detection. After Dunbar retrieved the drugs, Boisvert witnessed Dunbar place the cocaine in a jar with baking soda, in order to make crack. Boisvert testified that she had seen Dunbar perform the same process on one or two other occasions.

At the close of evidence, Dunbar requested a jury instruction on multiple conspiracies. The judge denied this request. The jury convicted Dunbar on all counts of the indictment. Dunbar now appeals the denial of his request for the instruction and argues there was a prejudicial variance between the evidence and the conspiracies charged in the indictment.

Prior to sentencing, the Probation Office prepared a pre-sentence report ("PSR"), which found that Dunbar was responsible for, among other drug quantities, 448.6 grams of cocaine base seized from Cormier and Spaulding and 185.6 grams of cocaine base seized from Sampson upon re-entry into the United States. The PSR treated these quantities as crack cocaine for the purpose of computing Dunbar's guideline range. Dunbar lodged a number of broad objections, including objecting generally to the drug quantities attributable to him and "to the conclusion that at anytime he was involved with crack cocaine for the reason that the government did not present evidence that the substance was mixed with sodium bicarbonate." At the disposition, the district court mentioned this objection, which had been filed late, and stated it "wasn't quite sure where you're going here," and invited Dunbar's counsel to elaborate. Dunbar's counsel declined to supplement the objection. The district court proceeded to adopt the PSR's guideline calculation and sentenced Dunbar to 360 months imprisonment, followed by a mandatory consecutive 60-month term of imprisonment for count five. Dunbar now argues on appeal that the district court was in error when it assumed that the cocaine base referenced in the PSR was in fact crack cocaine.

II. Discussion

There are four general issues we must address in this appeal: (1) the district court's denial of Dunbar's motion to suppress, (2) the district court's denial of Dunbar's motions for mistrial, (3) the prejudicial variance argument and the district court's handling of Dunbar's jury instruction request, and (4) the district court's rejection of Dunbar's challenge to the factual findings in the PSR.

A. Motion to Suppress

"We apply a mixed standard of review to the district court's denial of the motion to suppress. We review the court's findings of fact for clear error and its application of the law to those facts de novo." United States v. Morales-Aldahondo, 524 F.3d 115, 118-19 (1st Cir.2008). To succeed, Dunbar "must show that no reasonable view of the evidence supports the...